Family violence, assessment and distance mediation: How do they fit together?

By now, you have likely heard about the introduction of the new Family Law Act in the B.C. legislature.  You may even have read our recent post on this topic.  You may also have heard that, under the new Act, family dispute resolution professionals – lawyers, mediators, parenting coordinators and family justice counsellors – will be required to assess for family violence.

If you are going through a separation or divorce, and are new to mediation, you may be asking yourself what this is all about.  What is meant by “assessing” for family violence?  Why is it important and how exactly does a mediator “assess”?  And, how can a family mediator make an assessment if s/he is at a distance, meeting with you using technology?

In today’s post, our distance mediation team member, Carole McKnight, shares some of her vast experience and knowledge about assessing in mediation, answering these questions and more:

Carole McKnight

“Tick tock, tick tock” goes the clock. Who has time for long conversations and in-your-face meetings these days? Your already fragmented life has become even more fractured since you split up. Just getting to work is enough to cope with each day, never mind the work itself and spending time with the kids afterwards. Things were pretty intense before you split, but you still need to work things out. You each live in different towns or cities, so it is not easy.

Distance mediation is a way of communicating with your partner from, yes, a distance… by phone or a computer-based technology. No travelling and no having to sit in the same room with that “problem person”. There is just your ex, the mediator and you, each in the comfort of their own room and in front of a computer or on the phone.

Naturally, you are going to be cautious. We all know that e-mail messages can be poison if things aren’t going well between you. What’s to say bringing in a mediator won’t make it worse? Besides, how can you be sure this will stay private?  And what if a past incident of family violence has you wondering about safety? These are valid concerns that need to be considered before beginning mediation.

Here are five of the things I do when mediating from a distance. I suggest you consider these if you are thinking about trying distance mediation:

1.  Change is in the wind:  After 33 years we are getting a new Family Law Act in British Columbia! Under the new law, family mediators and others who offer dispute resolution services are going to be required to “assess” for family violence in every case. Most mediators – including myself – do this already, as it is part of our code of ethics. Family mediators who are certified with Family Mediation Canada or who are on the Mediate BC Family Roster have had training in how to assess for violence, as well as in the dynamics of abuse, family law and child development.

2.  Spend time alone with the mediator first:  I always start with individual meetings with each person. Using computer-based videoconferencing technology such as Webex’s Meeting Centre or GoToMeeting is great because you can see the mediator and have a pretty good conversation. You can even share documents and work on them together. “Hold on,” you say, “I’m not too swift on techie stuff.” Most of us aren’t – including, possibly, the mediator – but it is actually pretty straightforward. We practice using the technology first, until people feel ok with it.

Because I will be meeting with each person at a distance, we arrange a time to chat when the children are being taken care of by someone else or are away at school. This is so there are no interruptions or little ears listening.

After the separate meetings with each of you to assess the situation, we decide either to go ahead with mediation or other ways to work out a solution.

3.  Assessment:  What exactly does “assessment” mean? Is it like an assessment on your house when you are putting it up for sale? Sort of… it means getting a Big Picture Look at your situation to make sure you are getting a safe and helpful service.

Don’t get me wrong. This assessment is not to meant to pry into your life unnecessarily – it is to work with you to identify the best type of service in your situation.

I ask similar questions of everyone to get an idea of the issues that need to be dealt with. From talking to friends and relatives, you already know many families who are breaking up. It is not just the legal paperwork that needs doing. People often need to find out about personal or marriage counselling, helpful information for their children, how to work out finances or to find housing, or where to get drug or alcohol counselling. I will discuss with you services that are most appropriate, and these may or may not include mediation. I know the types of parenting arrangements that are most likely to work best depending on the level of conflict so as to keep everyone clear and safe.

Assessment also includes screening for family violence. This is done to check that there are no safety concerns that would make mediation unsuitable and to ensure no one is being forced to agree. You probably already know that violence takes many forms and it isn’t just the physical damage that is hurtful. The words that couples use to each other in anger can be destructive, too. Over the years I have learned that people usually do not like to admit they have been abused. Often it is a deep, dark secret held between couples. However, straightforward questions can help the mediator gauge the level of propensity for further violence. I ask questions like: What happens when you disagree with each other? or Are you afraid for your safety? The questions are meant to get at the severity of the violence, how frequent it is, and the effect it has on family members.

There are certainly clear-cut cases where I do not believe distance mediation will work, such as:

  • where someone is likely to experience harm, or there are ongoing threats
  • where there is a history of non-compliance with the law
  • where serious injuries resulted from the violence
  • where one of the parties does not want to meet with the other
  • where a pre-existing protection or restraining order prevents contact, and
  • when an abuser does not accept any responsibility for the abuse.

There are other situations, where I might consider distance mediation, for example, if:

  • the violence is in the past and counselling has been sought
  • the incident was  brought on in the heat of separation but  there was no previous history and the injuries were not serious, and
  • neither person is afraid of the other and wants to meet together with the mediator.

In addition to asking questions, I take other steps. For example, I always check if there are unlisted phone numbers or addresses that need to be protected. If need be, I will discuss a safety plan. If it is an emergency situation or there are immediate threats to harm another person, I will contact the police, because in these situations confidentiality cannot be maintained.

4.  Setting up and managing the meetings:  If everyone agrees to try distance mediation, advocates or lawyers may be part of the meetings. Everyone must state who else is in the room with them. You – and the others – will be asked to sign an Agreement to Mediate that makes clear the purpose and guidelines for the mediation. This includes rules about confidentiality and disclosure of information that is needed to deal with the issues.

Many clients feel comfortable being in separate rooms and approach the meetings like a business call. They find it is easier to manage their emotions from a distance. And, it helps if I am there to guide and manage the conversations so they get to where they need to go.

At the same time I am always aware that, in using distance mediation, there is a danger of being lulled into a false sense of safety. Vigilance, paying close attention and checking in with clients regularly is key to successful distance mediation.

5.  Separate meetings from time to time:  Separate meetings can take place after the joint meetings at the request of either client. I often follow up our meeting with a call or e-mail to each person to make sure the mediation is working for them, and to continue assessing the situation – including screening for family violence. I always strongly suggest that clients seek legal advice before they sign any agreement.
The clock ticks on… so do new ways of doing things. I believe that making use of today’s new technologies in distance mediation opens up more doors for those who are separating and need to work out parenting arrangements. In the hands of a trained and knowledgeable mediator this can be done safely and effectively.

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